Geistfeld on Unifying Principles for Pluralist Tort Adjudication

Mark Geistfeld has posted to SSRN Unifying Principles Within Pluralist Tort Adjudication.  The abstract provides:

The ongoing fact of pluralist tort adjudication calls into serious question whether tort law plausibly coheres into a single integrated moral justification such as welfarism or Kantian right. A healthy political society values diverse viewpoints and their associated moral theories. Recognizing as much, Jane Stapleton and numerous other tort scholars have concluded that tort law is committed to pluralism as a substantive matter. Their reasoning seems incontrovertible: tort adjudication has always been conducted in terms of incompletely theorized mid-level principles such as reasonableness or fairness that can be justified by a plurality of values. Attempts to interpret tort law in terms of a single integrated justification miss the mark on this view, turning them into “grand theories” that are practically useless for the bench and bar.

Though otherwise valuable, substantive pluralism is problematic in the context of adjudication. If tort law must always be formulated to protect a plurality of competing values, it could not justify judicial decision-making in hard cases, nor could it meaningfully protect individual rights or otherwise provide individuals with requisite guidance on how they should behave when pluralist values conflict. Rather than entailing a commitment to pluralism as the substantive rationale for tort law, pluralist adjudication is more plausibly characterized as a dynamic process of constructive interpretation. As I will try to demonstrate, pluralist tort adjudication that proceeds on the basis of incompletely theorized agreements embodies unifying principles that can satisfy the demands of law as integrity.

Most obviously, pluralist tort adjudication is normatively coherent when conducted in the context of an overlapping consensus of the competing pluralist values. To identify an overlapping consensus, one must apply the different foundationalist moral principles that plausibly describe tort law in order to determine whether their demands conflict for the class of cases under consideration. Doing so is not merely a pedantic exercise. When cases are situated within an overlapping consensus, doctrinal analysis is considerably sharpened by eschewing mid-level theorizing in favor of the more fully theorized foundationalist moral principle best fitted for addressing the issue at hand. Wide swaths of tort law find justification within an overlapping consensus, an important point that tort scholars have largely overlooked.

A focus on this attribute of tort law also reveals important classes of cases in which pluralist values conflict. Within this space of hard cases, there is an overlapping consensus concerning the reasonable structure of pluralist adjudication. Litigants have an institutional right to be treated equally under the law, which precludes judges from resolving hard cases by simply invoking their preferred value systems when doing so would conflict with other pluralist values. The common law implements this requirement of equal treatment with its characteristic mode of judicial decision-making based on analogical reasoning—treating like cases alike. Analogical reasoning depends on unifying properties for categorizing cases that make pluralist tort adjudication a dynamic process for rendering tort law normatively coherent, thereby implementing law as integrity. Throughout this entire process, monistic interpretive theories are integral for developing the concepts and doctrines of tort law.